The top ten questions about Family Law
When can I apply for a divorce?
The only ground for divorce is an irretrievable breakdown of marriage. This requires living separately and apart for 12 months. You can only file an application for divorce after the 12 month period has expired.
What if we still live in the same house?
It is possible for you to live separately "under the one roof". However, you must have independent evidence of the breakdown of your relationship.
What if we never actually got married?
Generally, if you co-habit for a period of 2 years or more, or have children together, you have legal "de-facto couple "status. This means that you may apply to the Family Court for property settlement as if you were married.
When should I start proceedings for a property settlement?
You must initiate proceedings for property settlement (at the latest) within 12 months of your divorce order being granted, or within 2 years after the date of separation for a de facto relationship. Otherwise, you will need to apply to the Family Court seeking leave to file an application.
What if we have already made our own agreement?
If you and your partner make an agreement that the Court does not ratify, it is not enforceable and could easily be overturned by the Family Court. Usually, such agreement would be documented via a Form 11 Application for Consent Orders or in certain circumstances, a Binding Financial Agreement.
What if we delay in dealing with child residence or contact issues? (Now referred to as "lives with" and "spending time with" arrangements).
A delay can be devastating, especially where a "status quo" develops. The Court may be reluctant to let you change existing arrangements unless you can prove there is a compelling benefit for the children or other parties involved. Prompt action on separation is essential to avoid this.
How will our property be divided?
The Family Court decides how to divide your property. There is no automatic presumption of an equal division of property. The Court will consider the extent of the asset pool to be distributed; the financial and non-financial contributions of both parties; and their respective future financial needs.
Is a Child Support Assessment final?
No, a Child Support Assessment is not necessarily final. In particular circumstances, you can challenge the assessment, but the procedure can be quite complicated.
What about the super?
Superannuation is now regarded as a family asset which can be divided when a marriage breaks down. However, this does not yet apply to de-facto relationships. You should ask for legal, taxation and financial planning advice before proceeding with a superannuation splitting order.
Are Binding Financial ("Pre-nuptial", "Co-habitation" and/or "Separation") Agreements valid?
Yes, they are legally valid and enforceable if they meet certain necessary requirements. However, this applies only to such Agreements made after December 2000.